Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Saturday, December 6, 2014

Reading the Darren Wilson Transcript (Part 6): Mitchell Identified and Two More Witnesses

This is a series of posts where I plan to go
through all 4799 pages of transcripts before the Grand Jury in the Darren
Wilson case, in order to figure out 1) should he have been indicted, and 2) is
he guilty? Some background. This is the
post introducing the series and giving you many images that have been
released. This earlier piece
on Zimmerman also gives you a good primer on the law of self-defense in
general, at least in Florida, while this piece
discusses how Missouri law deals with self-defense and the unique right of a
cop to use force to stop a fleeing suspect (in some cases), and this piece
discusses (albeit briefly) the standard for indictment. I am not going to explain these points
of law twice, so if you are confused, go
back and read those.

This post will be updated to link to other
posts in the series without notation that it has been changed.

In Part
1, we reviewed the opening remarks by the Prosecuting Attorney, Bob
McColloch, and introducing the two attorneys who would be running the show for
the most part from then on: Kathi Alizadeh and Shelia Whirley. We reviewed two witnesses who gathered
evidence for others, but didn’t actually analyze it.

In Part
2, we had another detective who merely gathered evidence for others... at least as far as he testified that
day. That was interrupted by a medical
examiner who testified about the autopsy.

In Part
3, we heard from Darian Johnson, both in the form of media clips and from
his own mouth. We also reviewed the
private autopsy done by Dr. Baden.

In Part
4, I point out what a complete idiot Karoli is, and I talk about Wilson’s
side of it, including his actual testimony.

In Part
5, we reviewed the stories of two more lay witnesses, including one
identified as Witness 10.

Now, unlike
last time, I want to cover some news and other issues outside of the
transcript, before I start.

Louis Head’s Incitement. First, you might have seen me last week
discuss the possibility that Louis Head might have committed incitement. Hey, feel free to read
the whole thing, but here’s the headline: it’s pretty open and shut that he
did incite the mob in a way that can
be punishable under the First Amendment, but Missouri doesn’t seem to have a
statute that covers such incitement. In
other words, Missouri could
criminalize such behavior, but it doesn’t seem to have chosen to. As I joked on Twitter, maybe Missouri should
add such a law, call it Natalie’s law, after the woman whose cake shop was looted
during the riots.

But despite
all of this, there was noise earlier in the week that the police were investigating
whether he could be charged with this non-crime and then we got word that he
isn’t likely to be charged, which makes sense because I can’t find any
crime he could’ve committed. My guess is
that someone in the prosecutor’s office contacted the police and said, “um,
guys you are investigating a non-crime” and this is their attempt to have a
graceful way of dropping the issue.
Meanwhile, the same CNN link captures this bit of bull from Head
himself:

Head
said Wednesday that "emotions got the best of me" on the night of
November 24 in Ferguson, Missouri, when he yelled "Burn this motherf---er
down!" and "Burn this bitch down!"

"I
was so angry and full of raw emotions, as so many others were, and granted, I
screamed out words that I shouldn't have screamed in the heat of the
moment," he said in a statement obtained exclusively by CNN's Don Lemon.
"It was wrong, and I humbly apologize to all of those who read my pain and
anger as a true desire for what I want for our community.

"But
to place blame solely on me for the conditions of our community, and country,
after the grand jury decision goes way too far and is as wrong as the decision
itself. To declare a state of emergency and send a message of war, and not
peace, before a grand jury decision was announced is also wrong.

"In
the end, I've lived in this community for a long time. The last thing I truly
wanted was to see it go up in flames. In spite of my frustration, it really
hurt to see that."

If he didn’t
want his city to burn, he had a funny way to show it.

Indeed, even
as I was writing this, Weasel
Zippers found video from just before he stood up where he says that if he
gets up there, he would start a riot.
Watch for yourself:

As far as
blaming him for the riots, yes, it probably would’ve happened anyway. But go back and read the law on
incitement. There is no constitutional
requirement that the behavior actually cause lawlessness—only that it is
intended to do so. And plainly, his
words were intended to do so.

The most
charitable interpretation is he spoke in anger, and realized later his actual
desires were wrong. Maybe he even liked
the idea of Ferguson burning until he actually saw the reality of it. He wouldn’t be the first person to like the
idea of a thing, and then recoil at the reality of it. Or less charitably, his lawyer came to him
and dressed him down over this and this is CYA.
He certainly didn’t seem terribly interested in apologizing until the
police started looking into it, and while I don’t believe he was ever in any
danger of even being charged (because I can’t see how it is criminal under
Missouri law), I wouldn’t be surprised if he
didn’t know that. In any case, what he
said was wrong, it deserves every moral condemnation possible, but I can’t say
it is illegal.

The Simple Justice of the Grand Jury. Next up we have a guy I normally respect just
getting a great deal wrong about the Grand Jury. Scott Greenfield is a lawyer blogger who
writes over at Simple Justice, which describes itself as a “Criminal Defense
Blog” and largely I respect his opinion, which is why this piece is kind of
shocking.

Titled “The Ferguson
Lie” it is a condemnation of the use of the Grand Jury in this case.

Now, if all he
was doing was saying Bob McCulloch had decided the case was a dog, but let the
Grand Jury kill it, then that would be perfectly reasonable assessment. Yes, I suspected from the beginning that
McColloch just wanted the Grand Jury to do his dirty work. But Greenfield’s complaints are a little more
ridiculous than that

McCulloch
put on a play in Ferguson. His press
conference announcing the foregone conclusion was remarkable in many ways, not
the least of which was how he sold the argument for “no true bill” rather than
the position he, as prosecutor, was duty-bound to champion. The man charged with prosecuting killers
argued the case for not indicting Wilson.

This is so
wrong it is shocking. The prosecutor is
duty-bound to advocate for conviction?
No, he is not. This is not just
my opinion: this is the opinion of the American
Bar Association. They state clearly
that: “[t]he duty of the prosecutor is to seek justice, not merely to convict.” In other words, they don’t prosecute blindly:
they prosecute the guilty and seek a just sentence. Now, granted that some prosecutors forget
this and seek to rack up convictions regardless of guilt. How much this actually happens is a point of
reasonable debate. But he is attacking a
prosecutor for behavior closely aligned with the ideals of the American Bar
Association and the enunciated ideals of pretty much every prosecutor alive,
and of course what any rational person wants the prosecutor to do: prosecute
the guilty, spare the innocent.

And it is not
the case that every “killer” is prosecuted.
For instance, is anyone in America calling for the prosecution of Robert
O’Neill for killing bin Laden? This is theoretically
possible. When Steven Dale Green raped a
fourteen year old girl in Iraq, killed her, and set her body on fire, he was
tried in an American court and found guilty, because of the extraterritorial
application of certain laws. But barring
some surprising revelation, there isn’t the slightest practical possibility of
O’Neill being tried, let alone convicted in an American court, and I don’t
believe there is any significant outrage about that fact. O’Neill is a killer, as indeed are thousands
of soldiers in the most literal definition of the term, and yet for the most
part 1) they are doing nothing wrong and 2) won’t be under any threat of
prosecution. Why? Because it was justified. The idea that every person who kills another should
be prosecuted is in essence to punish what might be innocent civilians for
daring to defend themselves, or to punish cops and soldiers for doing their
damn job. And, hey, why shouldn’t cops
and soldiers have to endure a trial every time they fire their weapon in the
line of duty? I mean we pay them more
than enough for it, right?

(Note: I am
being sarcastic in that last part.
Sometimes in pure text it is hard to tell, so I follow the Elcor rule,*
sometimes specifically explaining my intent.
Seriously, who would be a cop if every time they fired a gun they were
put on trial, however well their actions were justified?)

But, alas it
gets weirder:

The
grand jury transcript offers little comfort. Those who explain that it’s
transparency are lying to you. It’s all part of the Ferguson Lie. While it tells us what was presented, it
doesn’t tell us what was not. It’s unchallenged, unquestioned and
unquestionable evidence. There is no
adversary in the grand jury to roar against its one-sided presentation.

There is
nothing literally false about that, but the logic is upside down and
particularly the claim that there is no adversary, is a downright misleading
point. If Wilson was indicted, we would
have an adversarial trial, yes, but DarrenWilson would be the adversary. The extra evidence would be offered by Wilson
and his lawyers. This wouldn’t make
things easier for the pro-prosecution side: it would make it harder.

Seriously, it
is like as if he thinks that such a criminal case would be Brown Family v. Wilson, not Missouri
v. Wilson. It might be the case that
members of the Brown family might civilly sue Wilson, but we are talking about
the decision not to indict right now, and the evidence was not going to be more
favorable to the prosecution if it went to trial. This is almost axiomatic in court cases.

Next bit of
silliness: “That it ended without the prosecutor asking the grand jury for an
indictment is unheard of.” Actually, no
it is quite “heard of.” For instance, about
two years ago, a father caught a man, Jesus Mora Flores, molesting his daughter
and proceeded to beat him to death. This
resulted in this fairly remarkable piece from Huffington
Post:

Sheriff
Micah Harmon has said that he will not charge the father, but the case will be
presented to a grand jury to consider charges.

The
father called 911 after the incident, reporting that Flores was on the ground
and unresponsive. Harmon told reporters that the man appeared "very
remorseful" and didn't know he had killed the abuser.

"You
have a right to defend your daughter," Harmon told CNN at the time.
"[The girl's father] acted in defense of his third person. Once the
investigation is completed we will submit it to the district attorney who then
submits it to the grand jury, who will decide if they will indict him."

In some parts
of America, the prosecutor takes the lead.
They decide whether to prosecute and then if they do, they stack the
deck so an indictment is assured.

And in some
parts of America they submit pretty much every case to the Grand Jury, or broad
categories of them, whether they think the case should be prosecuted or not. They truly sort out the cases that have merit
v. the ones they don’t.

And of course
there is the traditional function of Grand Juries. There is a reason why the Fifth Amendment
guarantees the right to a Grand Jury—because it was seen as a protection for
the accused. Its purpose was to make
sure you can’t be tried for a crime, unless there is sufficient evidence to
justify it. They believed that making it
solely a matter of prosecutorial discretion could lead to abuse and
oppression. You might complain that they
don’t fulfill that function as well as they should, but that doesn’t add up to
“he should be indicted!”

So what to
make of this silliness from Greenfield, piffle from a man who isn’t normally
this shallow? I mean one would tend to
think he would be biased in favor of Wilson not being charged. After all, if you are devoted to criminal
defense, to holding the state to a high standard of proof, well, Wilson was the
potential defendant here. I know very
often “pure” Defense attorneys often seem to believe no one is ever guilty of
anything. By contrast, current and
former prosecutors (who might now be working in defense) tend to be more balanced
in their approach. Mind you, they still
might be biased, but it’s not as pronounced.

But I think
cases like this mess with the instincts of those ordinarily biased toward
criminal defense. First, self-defense is
often blended with condemnation of the deceased by accusing that person of a crime. While you don’t have to think Trayvon Martin
was guilty of aggravated assault to believe that George Zimmerman was justified
in killing him, it is admittedly hard to say Zimmerman was justified without saying
Martin was guilty of a crime. People go
as far as to say Zimmerman was blaming the victim, invoking the adage that you
don’t blame the victim (particularly of a rape) for the crime committed against
him or her. But in fact when you condemn
righteous self-defense, you are doing
exactly that: blaming the victim for refusing to be just a victim. The overwhelming weight of the evidence in
that case says that Zimmerman was being brutally attacked when he shot Martin
and it is very hard to believe he was not the victim of the crime of aggravated
assault. But instead of just taking his
beating like a good boy, he shot and killed his attacker to end the assault,
and for this he has been condemned.

But that
doesn’t seem to be Greenfield’s problem.
This essay,
for instance, on the Zimmerman verdict seemed to get that the case came out
correctly.

But I also
think that some defense attorneys see themselves on the side of defendants
generally, while others they see themselves primarily as being against “the
man,” against the state. And so when an
agent of the state—a cop—is on trial suddenly he is not a “defendant.” He is “the man,” and therefore all the rights
the accused ordinarily enjoy disappear. I
don’t know how else to understand Greenfield’s terrible logic.

If you need an
antidote to that, on the other hand, there is former prosecutor Andrew
McCarthy’s piece Progressive Mythography:

The
critics’ claim that Wilson’s innocence is put in doubt by “conflicting
testimony” is legally and factually frivolous. Legally, our system resolves all
doubt in favor of the accused — as the Left is apt to remind us when a
terrorist is in the dock, this is called the “presumption of innocence.”
Factually, the chatter about “conflicting testimony” falsely implies that all
testimony is created equal. In reality, accounts given by anti-Wilson
witnesses, where not patently fabricated, tended to be discredited by forensic
evidence. The forensics, instead, corroborated the exculpatory testimony — much
of which came from African-American witnesses, a fact that undermines the myth
and therefore goes largely unnoticed. The grand-jury rules are more permissive
than those that govern criminal trials, but prosecutors are still ethically
barred from asking the grand jury to rely on testimony they believe is false,
inaccurate, or unconvincing.

Read
the whole thing. Seriously, the
whole thing is like the cold water of truth being splashed on your face, with
the only limitation being that I can’t verify his claims about the witnesses...
yet. It’s still a lot of material to go
through. I would also quibble with his
suggestion that this is about myth-making.
No, this is about prejudice, the weird assumption that if a white person
does violence against a person who is not white, that racism is always involved
(an assumption that never works in reverse, by the way). Of course any time crime crosses racial lines
you need to keep an eye out for racial motive, but the assumption, without
evidence, is simply racism of another stripe: the racist assumption that another
is a racist because of their race. And
that needs to be confronted.

Anyway, let’s
try to fill in the gaps in my knowledge of the Brown/Wilson case a little more,
shall we?

The transcript: so, at last we get back to the
transcript. As you might remember, I was
working through this file:

Introducing
the day’s proceedings, the lwayers said they were going to hear from a live
witness who they heard lots of intereviews, etc. from what sounds like the
first witness I reviewed in the last post, whom I had a problem with separating
what he saw v. what he assumed. But we
shall see. As I said in the beginning,
this is going to read a bit like a live blog.
A really, really long live blog.

The jury also
had a question about what happens if they don’t have nine grand jurors agreeing
on a charge. As you might remember, the
grand jury is 12 people, and you need 9 of them to agree in order to charge,
but I suppose the question is like “what if 7 of us think it is second degree
murder and 2 think it is first degree?”
They said they would get back to them on that (they have plenty of time,
I suppose). Then they got to the first witness:

First witness from yesterday: unlike
the marketer from yesterday, I can’t figure out any other designation. As you will remember I didn’t find him very
credible not because necessarily he is lying, but because he doesn’t seem to
separation assumption from observation.

And frankly I
go through pages and pages of this stuff, and I am not seeing anything
new. He is telling basically the same
story, all over again. And of course with
the same credibility problems. And
speaking of nothing more, they had one witness cancel and so they tried to fill
the time by finishing up listening to the police statement Witness 10
gave. I didn’t realize this, writing the
last post, but they had to cut it off early.
This doesn’t make a difference in my analysis, since I had already read
that transcript through. After that,
they played some videos, generally without transcribing it, or identifying it
enough for me to find it, showing interviews with one of the witnesses.

The big
exception comes when they say that one clip comes from “The Last Word with
Lawrence O’Donnell.” A little Google-fu
and I got something I previously didn’t have: her actual name. It is Tiffany Mitchell, and you can listen to
her her interview with O’Donnell, here. It also gives you the chance to assess her
credibility for yourself. I don’t know
if she came off the same way in the Grand Jury, but its something. And as you can see listening, this appears to
be the same witness I called the Marketer.
Other than giving you the chance to assess her credibility yourself, I didn’t
hear very much different in her story.

Also, now that
we have her name, it is possible to look up the other clips. So first we have this clip from KMOV. And there is a transcript of a Cnn interview,
here,
and I found video of the same interview, here. Honestly, I don’t see that they add very
much, but for what it is worth, she doesn’t come off as a liar in my mind, and
she doesn’t seem to be varying her story in any significant respect.

They also played what appeared to be a police interview
with a woman, apparently Mitchell. And
here’s a detail I hadn’t heard before: “He lost his sandals running from the
cop.” (Vol. 7, p.84; pdf p. 60). I had literally never heard anyone mention
that, but sure enough in the crime scene diagram in the introductory post and
in the legend to it, it does list two sandals found separately.

And then the grand jury reviewed an FBI interview with the
same woman. And pretty much the same
story is being told. It is interesting
that it gets somewhat contentious as one of the FBI agents really tries to get
her to separate observation from assumption.
But they get all the way to lunch recess with that interview
telling... basically the same story.

And then next we got to a new witness, another
unidentified witness—meaning no name, no number:

The Monte Carlo
Passenger: Yep, this is a passenger in the famous white Monte Carlo that
essentially fled the scene.

And let me say that I am not criticizing them by saying
that they fled. Even if you believe
Officer Wilson, it was a scary scene and I wouldn’t blame them for fleeing, as
long as they come forward later. For
instance, if you believe Brown assaulted a cop, then you would have suspected
Johnson was his accomplice, and in his own account, Johnson was trying to get
these people to take them away. They
might have been afraid of becoming a hostage or something. And alternatively, if you believe Wilson
killed Brown in cold blood, you might worry he would then kill the
witnesses. So without hearing their side
of it, yet, they seem to have fled the scene, but that seems reasonable to me.

Basically the story was that they were following Wilson
and then Wilson had his encounter with Brown:

A So that's where -- so that's where we are coming
down. whatnot. So I guess he was, the police was about right here somewhere,
talking to him or whatnot, they didn't comply.

Q How do you -- what did you know, did you hear them
talking?

A No, I didn't hear nothing at all.

Q You just heard later about them not complying, is
that what you are saying?

A I'm saying it was the police stopped.

Q Okay.

A And said something and that's, Mike Brown kind of
looked back and just both of them kept walking, him and Dorian. And that's when
he came back real fast, Officer Wilson, and kind of catty-corner the car and almost
hit Mike Brown, and jump back and that's when we were actually behind the
police car, the Monte Carlo.

(Vol. 7,
p.158; pdf p. 133). There are two things
to note, here. One we are getting some
problem separating assumption from observation, but it’s potentially
controllable. Second, the detail of
Wilson almost hitting Brown lines up with Johnson’s story.

Anyway, he
can’t see all the action because the window in the back of the SUV is tinted,
but he sees Brown at Wilson’s window.
Also, he loves to say, “or whatnot” which could be just a verbal tick,
but I know a lot of people who see that as hurting a person’s credibility. I look past it, but I could see how it would
be a problem for some. And they asked what
Johnson was doing:

A
He was like, he was like, right towards, when he was looking at it, I guess I
could show you all, I guess he is looking at them in the scuffling, he looked,
he kind of tripped over his foot and just, you know, ran off whatever he seen
because I couldn't see. I couldn't see and whatnot because the truck was, you
know, catty-corner or whatnot. So from then I was just like seeing Mike Brown
feet under the car.

Q
What was his feet doing?

A
Just moving like, you know, back and forth and truck starts shaking like two or
three different times.

Q
What did it appear to you was going on?

A
A scuffle, a scuffle and whatnot.

(Vol. 7,
p.160; pdf p. 135). So he hears a
shot. Incidentally the driver is a
woman, maybe his fiancé. We shall see. So they duck, opening the doors to their cars
to do so better:

A
So from then, as soon as like we backed up, Mike Brown ran on her side, I meant
the driver's side coming from the officer's car, like limping a little bit,
gasping for breath.

Q
Who was limping?

A
Mike Brown. So I think his slipper came off or something like that.

They go on to
claim that Brown is just walking fast, which doesn’t line up with anyone’s
version—everyone else said he was running, and no one talked about a limp. And they also claim to only have heard one
shot before Brown ran.

And then
Wilson gives chase:

And
then I did say [see?] like the second shot, said like a good four, five, six
seconds, and that's when I see the officer, Mr. Wilson, came the same way as
was [redacted]. You know, he's gasping for breath, had his gun down, just going
toward him.

(Vol. 7, p.164;
pdf p. 139). And he describes Wilson as
just trotting. And then he really
undermines his credibility:

So,
uh, and then I end up looking out the back window, I guess, coming down the way
or whatnot. Like the whole time I don't know, I blanked out or whatnot because
I'm not hearing anything, but I didn't hear nothing from the time that they was
at the truck. We are both, from the officer's truck to the time he was running
and whatnot because I guess he had got down the street some, a little after him
or whatnot.

(Vol. 7,
p.165; pdf p. 140). Blanking out is
human, of course, and saying a person is not credible is not the same as saying
they are lying, but this does hurt his credibility. And then the critical moment:

A
So basically from then I'm looking out the back window, [redacted] is looking
out her little rear view mirror. So I guess they got down the street, you know,
got down towards, they still in the yellow line the whole time. So get down,
get down a way and Mike Brown kind of swayed and turned around. His hands weren't fully up, he kind of turned
around and he was just like that, and then he slid off three more shots and
fell on his face. (indicating)

Q
So the officer shot him while his hands was like this? (indicating)

A
Uh-huh.

Q
And the way you demonstrated was his hands were—

A
Halfway.

Q
Like shoulder length?

A
Uh-huh

(Vol. 7,
p.165-66; pdf p. 140-41). So hands not
completely up. Nothing about one being
higher than the other. And nothing about
Wilson shooting him as he ran, although with him being unable to hear, maybe he
just missed it. He describes Wilson also
shooting and Brown falling, nothing about Wilson shooting as he fell. He said Brown wasn’t charging or anything
like that. And another important point
comes out: he was in the back seat, not the front passenger seat.

He also
indicates that he first talked to the cops on August 22, which I will
criticize. His testimony matter, and he
should have come forward sooner.

And that takes
us to the end of his testimony. I will
say my major problem with his testimony is when he says he blanked out. It really calls into question is ability to
perceive what happened. And there is some
doubt as to his separation between observation and assumption, but it is not so
pronounced it is a serious problem. That
and the differences with other stories makes me doubt his credibility. I don’t find him to be a particularly strong
witness.

Anyway, that
wrapped up that volume, so we are now in Volume 8, and thus that day for the
grand jury, but that doesn’t seem like a good stopping point, so let’s keep
going.

The next time
they met, they started off listening to a police statement made by an:

Unidentified Witness: This was made in
an FBI interview. They expected this
person to testify to the grand jury soon, so they truncated it. So we get this bit early on:

Q
But in the beginning when you saw the, the tussle in the car, can you describe
for me or show me what you actually saw Michael Brown do and what the police officer
were doing?

A
Well, actually, as I just stated to them, from my porch I can only see from the
passenger side.

Q
Okay.

A
I don't know if he had grabbed him or what, but you could see them tussling in
the car, they were moving around.

Q
When you say he grabbed him --

A
I don't know who grabbed who.

Q
I know. When you say he?

A
The police officer.

Q
Okay.

A
Because he was walking, he must have said something to him and he was approaching
the truck. Then we saw the tussling.

(Vol. 8, p.25;
pdf p. 214). And he talks about how the
cop “must have said something” and they had to lecture him about not sharing
assumptions. And further describing that
struggle:

A
He was on the outside and the officer was still in the truck.

Q
And how is Michael Brown's body?

A
He was like, he was, I could see the top of his head, he had a hat on.

Q
Okay.

A
I could see the top of his head, and then he dropped down and he disappeared
for a minute. Next time I saw his head is when I heard the shot, that's when he
popped up.

Q
Okay.

A
Okay.

Q
Were you able to see from your vantage point whether Michael Brown's body was
bent over--

A
From my vantage point I can say clearly he was not inside that truck. He was
partially, maybe his head, was right there at the officer's head.

Q
Okay.

A
But so for his body being in, no, I couldn't say with 100 percent accuracy that
his body was, but I'm quite sure it wasn't.

Q
Okay. So you don't know for sure?

A
No.

Q
What about his hands?

A
They were inside.

(Vol. 8, pp.
27-28; pdf pp. 218-219). Which backs up
Wilson’s version, but we are seeing an issue of keeping this witness to the
facts, and not his guesses. For
instance, a minute later, he says he can’t tell Brown’s head went inside the
car.

And he heard
only one shot before Brown started running.
The witness also says that he is “collecting social security” presumably
meaning he is retired. So an older
gentleman. And he mentions several other
people were with him. That gave him some
contact with Brown because he would sit on his porch and if Brown went by, they
would say hello, but not talk at all.
This is very familiar to me, because that is how life used to be in
places like North Carolina—everyone would just sit on their porch in the
evening, often with a swing on the porch and socialize with people passing by.

And then the
account gets really confused:

Q
Okay. You said Michael Brown took off running and there was a pause, police
officer chased. What was that friend doing?

A
After he ran, he disappeared, you couldn't see him. You don't know, we thought
he had ran around to the side of the building, but someone is saying and other
people was saying one of the reason that I heard and read that he was actually
behind the other police truck that was there, he ran behind this other car.

(Vol. 8, p.
33; pdf p. 222). Please note that they
seem to tend to call SUVs trucks. I
don’t do that, but maybe it’s a regional thing.
But the more important point is... another “police truck?” There is no support for this at this
time. So either he is confused on the
question, or... who knows? And this is
troubling as well:

Q
From your vantage point where Michael Brown took off running, what did the
friend do?

A
He ran the opposite way.

(Vol. 8, p.
34; pdf p. 223). The other accounts are
pretty unanimous, to the extent that anyone watched Johnson, that he ran the
same way Brown did. I won’t say that
definitely is what happened—but it seems likely. The critical moment:

A
This is one right here. This driveway right here, okay, his friend went toward
West Florissant. Michael ran towards the first driveway which is located where
the memorial is on the post.

The
officer got out of the truck, came around to the back of the truck.

Q
Okay.

A
Assumed his position like this. (indicating)

Q
And you are showing, was the gun out in the front of you?

A
The gun was out like this, he had his hand out, he was in his position and he
told, that was after the shot he got out, when he got shot he ran. By the time
he got to the edge of the driveway after he crossed the sidewalk, he got on the
black part of the driveway he stopped, Michael stopped. He was looking at
hisself to see where he was hit, he was doing this, but he had stopped.

The
officer, at that time, he had come around to the back, Michael had his back
turned to him. He told him stop, but he had already stopped.

Michael
turned around to face him and he had his hands shoulder high, just a little bit
above his shoulders, but they were out away from his body.

Q
Okay. Let me just stop you for one second. So you are saying when the officer
got out of the vehicle, you are saying he ran around his car and stopped and
did not chase after Michael?

A
No.

Q
And when Michael was running away, the officer was not shooting at him; is that
correct?

A
No, he didn't shoot then.

Q
Okay.

A
He didn't fire, he already had fired one shot when he came around to the back and
assumed the position. He yelled at him to stop, which Michael had already
stopped, when Michael turned around, he told him again, stop.

Q
Okay.

A
Michael took a step off the sidewalk. As soon as his foot hit the street, the officer
let loose, wham, wham, wham.

(Vol. 8, p.
35-37; pdf p. 225-27). Which is really
confused in parts, where you are not sure which “he,” he is talking about. But he agrees with Wilson that he didn’t
shoot as Brown ran from him, but agrees with Johnson that Brown had his hands
up, and wasn’t really charging when Wilson shot him to death. More from that moment:

Q
So right after that when the officer started shooting, what did Michael Brown
do?

A
After he fired that first round, that first volley. He hit him, he started staggering,
he first kind of went back like, pow, from the impact.

Q
Okay.

A
And then he started staggering. And he was looking at the officer as he brought
his head up, he looked down, oh, God, I've been shot. He looked up at the
officer and he was looking at him and he was staggering, he was trying to stay
on his feet. And myself and my family is telling him stop, dude, stop, stop,
stop.

Q
Were you actually saying that out loud?

A
Yes, he couldn't hear us, you know, from where we live.

Q
I know he couldn't hear you, but were you actually yelling it in hopes?

A
Hoping that he would hear but he was staggering. We could see that he was staggering
and he took about, I don't know, three or four more steps, but as he was taking
his steps forward at that time, the officer took a few steps back, he was still
in his spot. When Michael took the other steps and he was staggering, his body
was like -- can I stand up, please?

Q
Yeah, absolutely.

A
Okay. He was standing up, he was shot. He was leaning like this, but his head was
like this. And he was standing up staggering, he was trying to stay up on his
feet like this.

Q
Okay.

A
And he was definitely, we were yelling at him stop, stop, stop. My sister-in-law
and [redacted] said, oh, God, he's getting ready to kill him, he's getting
ready to kill him. And no sooner than he said that, no sooner those words came
out of their mouth, he was going down, it looks like he was going down. And he
let off four more shots pow, pow, pow, pow.

Q
Okay. When the officer was shooting was when Michael Brown was coming towards
him; is that right?

A
Yeah, he was not charging him, he was defenseless, hands up, he was trying to
stay on his feet and you could see that his knees was beginning to buckle, he
was going down. When he shot him as he was going down, he hit face first,
splat.

Q
Where were his arms when he fell to the ground? You are showing arms at either
side of his head?

A
When his body hit is when I ran up there his arm, one was like, I can't exactly
tell on the body, one was like this when he hit down. I guess they moved when
he hit the ground, but he was dead on the way down.

(Vol. 8, p.
40-43; pdf p. 230-33). He later says
that every time Wilson shot, Brown was coming toward him, and he couldn’t hear
of Brown was saying anything. And, from
the end of it:

So
I wanted to see what he was getting ready to do, but Michael was staggering. You
could see him clearly staggering, you know. And then when he started like he
was going down, he fired again and that's when I said, oh, my God, he just
killed him.

(Vol. 8, p. 45-46;
pdf p. 234-35). So it is ambiguous, but
it might be read as backing up Johnson’s claim that Wilson shot as Brown fell,
which would be the only way to explain the bullet to the top of the head, and
the bullet above the eye is harder to explain without something like that.

And that
brings us to the end of that pdf. So let’s
embed the next one:

He also
mentions that he saw some workers nearby, described as plumbers. And yes, white, if you care about that. He claimed that they saw the same thing, for
what that is worth (not much, because it is hearsay). And then they go on (and on, and on) about
how they heard unidentified people saying things that were false, like Brown
had his hands all the way up, or Wilson shot him in the back, and so on. Which is frankly all useless information to
me. I mean a lot of what he is saying is
socially interesting, but this is taking long enough as it is, and it’s not
helping me answer the central questions: did Wilson deserve to be indicted and
did he actually commit a crime?

Anyway, next
we got the same guy giving live testimony.
One interesting thing is he revealed early on that his brother had just
pulled up before the incident, and he had to go around Brown and Johnson,
pretty directly contradicting Johnson on this point. Which is not the biggest thing, but for what
it is worth. Most of it matching
up. But there are slight variations. For instance, here, he seems to suggest that
Brown was moving more than he did before:

As
he was turning, at that time the officer had already been around to the back of
his truck and got into his spot. By the time he got there, while Michael was
there, he was slowly turning around and the officer said stop. When Michael
turned around, he just put his hands up like this. They were shoulder high,
they weren't above his head, but he did have them up. He had them out like
this, all right, palms facing him like this.

The
officer said stop again. Michael then took a step, a few steps it took for him
to get from that blacktop to the street. When he stepped out on the street, the
officer said stop one more time and then he fired. He fired three to four shots.
When he hit him, he went back.

(Vol. 8, pp. 117-118;
pdf pp. 56-57). But don’t assume from my
quotation of that passage, that this version is a justified killing. By his own testimony, Wilson expected backup
to arrive at any moment. So if he merely
got Brown to stop approaching, but couldn’t get him to lay down, he could wait
for backup and non-lethal forms of force.
In my opinion, deadly force could only possibly be justified if he was
1) running away, or 2) charging toward Wilson (or perhaps a third person). What is notable is the variation, although it
is not extreme enough to discredit him.
Anyway, he portrays Brown as staggering forward as he got shot. And he specifically said that as Brown was falling,
Wilson kept shooting, which as I have noted somewhat lines up with the forensic
evidence—that is, he is telling a story that explains pretty much all the holes
in Brown’s body. On the other hand, one
problematic claim is the medical examiner claimed that only the shot at the top
of the head was instantly debilitating, but even if Brown could have stayed on
his feet before then, he still might have fallen anyway, just by giving up.

He does note
that he needs glasses—both for reading and for distance, so that sounds like
bifocals—but was wearing them that day. And
he verifies that after the shooting he didn’t see anyone move Wilson’s car, or
Brown’s body.

Also notable
is this question from a juror: “The officer doesn't know whether or not he has
a weapon and Michael Brown is still moving forward.” (Vol. 8, p. 154; pdf p. 94). The answer is obviously he didn’t know for
sure, so that is not interesting, but the question is notable because it tells
us what one of them might have been thinking.
And that brings us to the end of his testimony, and what looks like a
pretty good stopping point for me.

What do I think
of this witness? He tells a story that
in broad strokes matches Johnson’s, but varies from all other versions in important
respects. But truth is not determined
democratically, so I can’t say yet whether I find him credible or not. Nothing discredits him, that is certain, as
far as I can tell from the data I have.

---------------------------------------

* “The Elcor
rule: is my colorful reference to how people, when writing pure text, often go
out of their way to make their intent known.
The Elcor are a race of sentient alien creatures from the Mass Effect
video game series. To humans and most
other species, they appear to speak in a monotone. In fact, they are using very subtle methods
of conveying meaning, but as a result most species in their universe can’t
understand when they are being sarcastic, etc.
So they typically start off each sentence, labeling their emotions,
saying things like: “Enthusiastic: how are you doing, human?” Or perhaps, “Sarcastic: that was really smart
of you.”

---------------------------------------

My wife and I
have lost our jobs due to the harassment of convicted terrorist (and
adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed
and to frame me for a crime carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you
read starting here,
you will see absolute proof of these claims using documentary and video
evidence. If you would like to help in
the fight to hold Mr. Kimberlin accountable, please hit the donation link on
the right. And thank you.

Follow me at
Twitter @aaronworthing, mostly for
snark and site updates. And you can
purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A
Novel of Alternate, Recent History here.
And you can read a little more about my
novel, here.

---------------------------------------

Disclaimer:

I have accused
some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice
I want is through the appropriate legal process—such as the criminal justice
system. I do not want to see vigilante
violence against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.

In the
particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.

And for that
matter, don’t go on his property. Don’t
sneak around and try to photograph him.
Frankly try not to even be within his field of vision. Your behavior could quickly cross the line
into harassment in that way too (not to mention trespass and other concerns).

And do not
contact his organizations, either. And
most of all, leave his family alone.

The only
exception to all that is that if you are reporting on this, there is of course
nothing wrong with contacting him for things like his official response to any
stories you might report. And even then
if he tells you to stop contacting him, obey that request. That this is a key element in making out a
harassment claim under Maryland law—that a person asks you to stop and you
refuse.

And let me say
something else. In my heart of hearts, I
don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.

About Me

Just a regular, sort of cranky moderately conservative lawyer, living in the greater Washington, D.C. and ruminating on law, life and the local spectator sport known as politics.
Btw, if you want to email me, write to edmd5.20.10 [at] gmail.com. I assume by now you understand that you are supposed to use one of those @ symbols for "[at]."